035-NLR-NLR-V-71-U.-ABRAHAM-SINGHO-Appellant-and-R.-ARIYADASA-Respondent.pdf
138
WEERAMANTBY, J.—Abraham Singho v. Ariyadasa
1968Present: Wceramantry, J.
U.ABRAHAM SINGHO, Appellant, and R. ARIYADASA, RespondentS. C. 126 of 1967—C. R. Colombo, 91889jR. E.
Jtent Restriction Act (Cap. 274), as amended by Act No. 12 of 1966—Sections 12 A and
13 (1) (d)—Meaning and effect of words “ has been convicted of using the
premises for an illegal purpose ”.
Section 13 (1) (d) of the Kent Restriction Act (Cap. 274) is as follows :—
"Notwithstanding anything in any othor law, no action or proceedings for theejectment of tho tonant of any promises to which this Act applies shall beinstituted in or entertained by any court, unless tho board, on tho applicationof the landlord, has in writing authorized the institution of such action orproceedings :
Provided, however, that the authorization of the board shall not be necessaryand no application for such authorization may bo ontertained by tho board, inany case where tho tonant or any person residing or lodging with him or beinghis sub-tennnt has, in the opinion of the court, been guilty of conduct which isa nuisance to adjoining occupiers, or has been convicted of using the premisesfor an immoral or illegal purpose, or the condition of tho premises has, in thoopinion of tho court, deteriorated owing to acts committed by or to the neglector default of the tenant or any such person. "
This provision was altered by Act No. 12 of I960 in terms of which therequisite was that the premises should bo used by the tenant or by any personresiding or lodging with him for an illegal or immoral purpose.,
Held, (i) that an illegal sale of arrack in the promises in contravention of theprovisions of the Excise Ordinance is a use of the promises for an illegal purpose;(ii) that consequently it makes no difference whether the law applicable bethe original Statute or the amending Act No. 12 of 1966 :(iii) that a salo
on a single occasion is sufHcient to constitute such use.
-Appeal from a judgment of the Court of Requests, Colombo.
D. R. P. OoonetiUeke; with Nalin Abeysekera, for Defendant-ApplicantB. B. D. Fernando, for Plaintiff-Respondent.
Cur. adv. vuli.
June 20, 1968. Weeramantby, J.—
The Plaintiff in this case claims the ejectment of the Defendant frompremises No. 58, Sri Kadiregam Street, Pettah, on the ground that aperson residing or lodging with the defendant has been convicted of usingthese premises for an illegal purpose. The premises are governed by theprovisions of the Rent Restriction Act, Cap. 274, and the standard rent isbelow Rs. 100.
139
WEERAMANTRY, J.—Abraham Singho v. Ariyadasa
The case proceeded to trial on the basis of the following among otheradmissions:—
(а)that in case" No. 26188 of the Magistrate’s Court, Colombo, one
Kulatunga Aratchige Agnes was convicted of selling on 8th July,1964, an excisable article to wit arrack, without a licence fromthe Government Agent, an offence punishable under Section18 of the Excise Ordinance :
(б)that the sale for which Agnes was convicted took place in the
premises in suit ;
that the said Agnes was permanently residing and lodging with thedefendant in the said premises.
In view of these admissions the main issue before the learnedCommissioner was whether the plaintiff was entitled to a decree inejectment in terms of Section 13 (1) (d) of the Rent Restriction Act, asamended by Act No. 12 of 1966, for having used the premises for anillegal purpose._
The learned Commissioner answered this issue in the affirmative andon this basis entered decree of ejectment against the defendant.
The tenant appeals against this order on the ground that the merefact of conviction for the Bingle offence referred to does not entitle theplaintiff to decree based on the use of these premises for an illegalpurpose.
It is necessary to note that the Act as it stood prior to the amendmentrequired a conviction as a prerequisite to the operation of Section 13 (1)
. This provision was altered by Act No. 12 of 1966, in terms of whichthe requisite was merely that the premises should be used by the tenantor by any person residing or lodging with him for an immoral or illegalpurpose. The plaintiff came into court however on 2nd October, 1965,and the law applicable to the plaintiff’s claim was therefore the law as itstood prior to the amendment brought about by Act No. 12 of 1966.
It is urged on behalf of the appellant that there has been no convictionfor the use of premises for an immoral purpose, and that the premiseshave not in fact been used for the commission of the offence. It issubmitted also that “ use ” connotes something more than a single act,and that notions of continuity or repeated user are implicit in the term.
The matter has received consideration from our Courts in two cases’the first being a case of possession, in violation of the Protection ofProduce Ordinance, of gunny bags containing manufactured tea dustand tea sweepings, and the second a case of unlawful possession of somebottles of cocaine.
In the first of these cases, Saris Appuhamy v. Ceylon Tea PlantationsCo. Ltd.,1 Rose C.J. took the view that the offence of possession of thegunny bags involved the use of the premises for the purpose of storing
1&953)55N.L.B.447.
140
WEERAMANTRY, J.—Abraham Sing ho «. Ariyadaaa
them, as distinct from the premises merely being the scene of commissionof the offence.
Rose C.J. relied on the decision of the Court of Appeal in Schneiderdc Sons Ltd. v. Abrahams,1 a case in which under the similar terms ofSection 4 of the Rent and Mortgage Interest Restrictions Act, 1923, asingle instance of user of premises for the receipt of stolen property wasdeemed sufficient to satisfy the language of the Statute. The propertyalleged to have been received in that case was a roll of Italian cloth. Inthat case the argument that a conviction for using the premises requiresthe user of the premises as an essential element of the crime was rejectedand the Court also rejected the argument that “ using ” the premisesrequires something more than a single act of user and means a continuous,frequent or repeated use. Of the latter argument Bankes L.J. observedthat although the mere fact of a crime being committed on the premisesmay not constitute a user of them for an illegal purpose, still even asingle act may in certain cases be quite sufficient to satisfy the languageof the Statute. As an instance of a crime, the commission of which didnot constitute use for an illegal purpose, reference was made to an assaultcommitted upon the premises and as an instance of an offence thecommission of which on a single occasion did satisfy the requirements ofthe statute, use as a coiners den or as a deposit for stolen goods wascited.
It will be appreciated that in the former type of case the premises aremerely the scene at which the offence is committed, whereas in the lattercase the premises are in fact used for the criminal purpose.
The second of the Ceylon cases referred to was that of Asiya Umma v.Kochi Mohideen2 where Sinnetamby J. proceeded on the basis that whatthe statute contemplates is a conviction for using the premises let for anillegal purpose and not the conviction of an occupant for an illegal act.Sinnetamby J. there took the view that a conviction for possession ofthree bottles of cocaine was not a conviction in respect of the use or thepurpose for which the premises were kept, and drew a distinction betweensuch a case and cases where the use of the premises is itself an offence, aswhere a house is used for unlawful gaming or kept as a brothel.
It seems to me that the ground on which the landlord in that case washeld not entitled to a decree of ejectment rests on a view which in Schneiderv. Abrahams was expressly ruled against by the Court of Appeal, for asalready observed, Bankes L.J. rejected the argument that the sectionincludes only offences in which user of the premises is an essentialelement.
The more satisfactory test in my view would be not whether the userof the premises constitutes an essential element in the offence for whichthe occupier or his licensee has been convicted, but rather as Bankes L.J.proceeded to observe in the same case, whether the tenant has taken
i (1925) 132 L. T. 721.
61 .V. L. R. 330.
WEERAMANTRY, •!.—Abraham Singho c. AriyadasaUl
advantage of the premises and the opportunity they afforded forcommitting the offence.
It may also be observed that Scrutton L. J. and Atkin L. J., the twoother judges who were associated with Bankes L.J. in Schneider db SousLtd. v. Abrahams, also lent their very high authority to the view of Bankes
J. that a conviction of using the premises does not require user as anclement of the offence for which the occupier is convicted. Indeed theuse by the legislature of the expression has been convicted of using ”was in that case criticised by Scrutton L. J.1 as raising difficulties byreason of its defective drafting inasmuch as if the section meansconviction for using the premises there could be very few crimes indeedthat could be properly so described and brought- within its scope.3
The same remarks would be apposite to our Ordinance as it stood priorto the amendment, and that is what concerns us here.
There is high authority therefore against both contentions urged bylearned counsel for the appellant.
It is of interest to refer briefly to an English case in whioh the sale ofliquor was the offence in question. In Waller <Sc Son v. Thomas 3 anisolated breach of regulations relating to sale within prohibited hourswas found insufficient to base a finding that the house was used foran illegal purpose. In that case however the premises were licensedpremises, the user was a lawful user, and the judgment makes it clearthat it was only by what is described as a slip in the user that the offeuccwas committed through a single "sale being effected outside permittedhours. In other words, in that case the sale of liquor in the premises washeld to be a user of those premises for such sale, but the user in quest ionwas a lawful user except during the prohibited hours.
If any guidance is to be had from this latter case, it would be to pointin the direction of such a sale being considered to he a user of thepremises.
Consequently, I have little difficulty in holding in this case that theconviction for the sale of arrack is a conviction of using the premises foran illegal purpose inasmuch as advantage has been taken of the tenancyof the premises and of the opportunity they afforded for committing theoffence. Such a case cannot be likened to a case of assault where thepremises merely afforded the venue or the scene for the commission of theoffence. An illegal sale of arrack requires a measure of cover, and thereis no doubt that the building has in this sense been taken advantage of.I may add that in this view of the matter it would make no difference tothe decision in this case whether the law applicable be the original statute
1 132 L. T. at 733.* Vide also MegatTy The llent Acts, 10th ed., p 272.
•' {1921) 1 K. B. 541.
Superintendent, Xukiudcniyu Group v. C'ornelitfluimy
U2
or the amending Act No. 12 of 1966, for the premises have been used inthe sense of being taken advantage of and are not merely the fortuitousscene of commission of a crime.
I must observe that there is no warrant in the material before thelearned Commissioner for his observation that the premises would havebeen used for the storage of a quantity of arrack. There was no suchmaterial placed before Court and such a finding cannot be based onsurmise or conjecture.
This latter observation does not however result in any difference to themain conclusion I have formed, and the appeal is therefore dismissedwith costs.
Appeal dismissed.